Public Opinion and the Courts
I'm grateful for Ken's post below, with the link to Matt Franck's good advice. I really agree that Republican senators should raise the choice not to filibuster to higher principle. I also agree that they should ask tough questions about controversial decisions. I never thought nominees had the right not to give their opinion on whether ROE was rightly decided (and why etc.) or whether same-sex marriage is a constitutional right, for example. I have to add that I believe that JUDICIAL RESTRAINT is a real issue: Nominees should be asked whether the agree with the mystery clause in PLANNED PARENTHOOD or the claim in LAWRENCE v. TEXAS that the word "liberty" in the Fourteenth Amendment is nothing more than a weapon to be used to expand the realm of freedom for every generation of Americans--led by the Court. I agree that the Constitution is too important to be left to lawyers, but I have to add that justices are nothing more than really good lawyers--and not philosophers, and they are interpreting a written Constitution as a law, even if a fundamental law. As the example of the C+ existentialism in PLANNED PARENTHOOD reminds us, the justices are led most astray when they think of themselves as a lot more than lawyers. JUDICIAL RESTRAINT properly understood means recognizing that a lot of the troubles of our time come from the fact that the Court has gotten too involved in "regime change." The absence of JUDICIAL RESTRAINT has become, in certain ways, a real threat to SELF-GOVERNMENT. The Constitution is not only too important to be left to lawyers. It's too important to be left to the Court (as Mr. Lincoln said with singular eloquence).
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